The Morality and Legality of Affirmative Action

The Civil Rights Act prohibits discrimination based on race in any program receiving federal financial assistance. The Equal Protection Clause of the Fourteenth Amendment decrees that “no State shall […] deny to any person within its jurisdiction the equal protection of the laws.” Taken together, these laws offer a forceful check against differential treatment based on race. Paradoxically, however, race-conscious affirmative action policies necessarily treat members of different races differently. How, then, is modern affirmative action constitutional?

Much like there are exceptions to free speech protections guaranteed by the First Amendment, it turns out that not all racial classifications are banned under the Constitution. Racial classifications fall under the umbrella of what the Supreme Court calls “suspect classifications.” For any law or program involving a suspect classification to be constitutionally valid, it must survive “strict scrutiny,” the most stringent standard of judicial review. This involves passing three tests: The program must serve a “compelling governmental interest”; it must be “narrowly tailored” to achieve only that interest; and it must be the “least restrictive means” of realizing that interest.

Regents of the University of California v. Bakke was the first time that the Supreme Court considered the constitutionality of affirmative action in higher education. Of the several reasons given by the UC Davis Medical School to justify its affirmative action program, one was “countering the effects of societal discrimination,” that is, remediation. This argument is rooted in group rights: Members of a minority are preferenced even if the individual benefitting has not directly been harmed, or the individual being denied preference is innocent of discrimination. In rejecting the group-rights argument in Bakke — as discussed previously — Justice Lewis F. Powell, Jr. thus also dismisses remedial affirmative action, describing it as “an amorphous concept of injury that may be ageless in its reach into the past.”

If remediation does not survive strict scrutiny, then what does? Justice Powell agrees with a separate justification offered by UC Davis: affirmative action is necessary for reaping the educational benefits of diversity. In his view, however, “genuine diversity” encompasses more than just racial diversity, and thus affirmative action programs are permissible as long as race is one among several factors considered during admissions. Additionally, a fixed “quota” of seats for minorities, or a separate admissions track, are not the least restrictive ways of achieving this diversity, since they insulate minorities from competition with other applicants.

In sum, Bakke establishes the crux of modern affirmative action jurisprudence: diversity is a permissible basis for race-conscious affirmative action; consideration of race is permitted only as a “plus”; and quotas are disallowed. Later Supreme Court decisions permitting race-conscious affirmative action policies, notably Grutter v. Bollinger, and Fisher v. Texas have upheld these standards imposed by Bakke.

In my opinion, Bakke manages to narrow the grounds for affirmative action significantly, for it shifts the focus of affirmative action policies from enforcing remediation to upholding a vaguely defined notion of diversity. As it stands, Harvard cannot argue in court that its race-conscious admission program attempts to correct past wrongs; rather, it simply enables the assembly of a diverse student body from which the entire community benefits. I do not contest the significance of diversity; it has been a highlight of my Harvard experience to interact with and befriend peers embodying diversity of all shades: geographic, academic, ideological, socio-economic, and yes, racial.

And yet, for all of diversity’s extraordinary benefits, affirmative action should fundamentally be about remediation, and not diversity. One might argue that group-rights-based remedial affirmative action policies penalize an innocent white applicant for harms committed in the past, or even that such policies might benefit a Black applicant no longer facing grievous discrimination, and as such are inconsistent with individual-rights jurisprudence. It is clear, however, that group harms were committed solely on the basis of race, and a group rights approach to remedy those should not be inconceivable. Indeed, a cursory examination of the world around us reiterates that the color of one’s skin continues to play an outsized role in one’s experiences. The experiences of George Floyd, Treyvon Martin, Breonna Taylor, and countless others serve as a testament to the fact that law divorced from ground realities cannot achieve justice.

Lastly, the diversity argument neglects the legacy of slavery and oppression in the United States. As author Kimberly Reyes points out, making diversity the point of affirmative action “shifts the beneficiary of the program from the historically discriminated against to the nation that had discriminated against them.” For decades, the majority was not even willing to share classrooms or train coaches with Black citizens, and racist fears about interbreeding and intermarriage were prevalent. It seems unfair, then, to expect minority students to offer transformational perspective and insight for the benefit of their non-minority peers in the name of diversity.

Diversity can be construed in myriad ways, some completely unrelated to affirmative action. A university might consider diversity of political views an admirable educational objective, but that has nothing to do with the racial legacy of the United States. The conversation about affirmative action stands to be diluted if it is reduced to platitudes about diversity being good for diversity’s sake. A math genius and a musical prodigy both add undoubtedly diverse perspectives to Harvard’s student body. But mathematical or musical talent was not the basis for slavery, or segregation, or Jim Crow. Race was, and affirmative action must first correct for racial discrimination.

None of this is to say that there do not exist well-intentioned arguments against affirmative action from perspectives cognizant of the country’s legacy of racial inequality. Having advocated for race-conscious affirmative action, in the next piece I will discuss the opposition to such policies.

Shreyvardhan Sharma ’22, a Crimson Editorial editor, is a Computer Science concentrator in Eliot House. His column appears on alternate Mondays.

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